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retaining worker status

Pete at CAB
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Welfare Benefits Adviser’ for Citizens Advice Cornwall

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I may be over-thinking this one but I would be grateful for some advice.

I have a client from Poland who came to the UK in December last year, stayed until February and then returned to Poland to have a baby. The client returned to the UK in September 21 and is living with a friend at the moment.

The cl has pre settled status but (unsurprisingly)  has failed the HRT test for UC so I am looking at other rights to reside as an EU worker.

The cl is in fact on Maternity Leave from an employer in Poland so under the usual rules (and Saint Prix) she has retained worker status but I am not clear if she has to have been employed in the UK to qualify for UC, is it sufficient that she has retained worker rights from anywhere in the EU?

Both her children appear to be UK citizens and as their father is no longer around I assume she could also gain R2R as they are her dependants and they automatically have R2R?

Thanks

Elliot Kent
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Pete at CAB - 02 November 2021 11:16 AM

The cl is in fact on Maternity Leave from an employer in Poland so under the usual rules (and Saint Prix) she has retained worker status but I am not clear if she has to have been employed in the UK to qualify for UC, is it sufficient that she has retained worker rights from anywhere in the EU?

No, it doesn’t work like that. You need to have worked in the UK to attain worker rights which can then be retained in the UK

Pete at CAB - 02 November 2021 11:16 AM


Both her children appear to be UK citizens and as their father is no longer around I assume she could also gain R2R as they are her dependants and they automatically have R2R?

I am not sure why we are assuming the 2nd child is a UK citizen if they were born in Poland to a Polish mother. Perhaps they have dual nationality?

But either way, it doesn’t do any good in terms of benefit entitlement.

If she is the primary carer of a British citizen who would otherwise need to leave the EU altogether (a Zambrano carer) then she would have a right to reside but would still be excluded from benefit entitlement. She may be able to seek support on that basis from childrens services, although given that it appears that there is no obvious impediment to the family returning to Poland, social services may push in that direction.

If she is the primary carer of a school age child who has at least one parent who is or was an EEA national who worked in the UK, then she may have a right to reside for benefits purposes on that basis (Teixeira rights). As mother has never worked in the UK, this would need to rely on the father (a) being a Polish or other EEA national and (b) having previously worked in the UK.

Pete at CAB
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Welfare Benefits Adviser’ for Citizens Advice Cornwall

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Total Posts: 380

Joined: 12 December 2017

Elliot Kent - 02 November 2021 03:31 PM
Pete at CAB - 02 November 2021 11:16 AM

The cl is in fact on Maternity Leave from an employer in Poland so under the usual rules (and Saint Prix) she has retained worker status but I am not clear if she has to have been employed in the UK to qualify for UC, is it sufficient that she has retained worker rights from anywhere in the EU?

No, it doesn’t work like that. You need to have worked in the UK to attain worker rights which can then be retained in the UK

Pete at CAB - 02 November 2021 11:16 AM


Both her children appear to be UK citizens and as their father is no longer around I assume she could also gain R2R as they are her dependants and they automatically have R2R?

I am not sure why we are assuming the 2nd child is a UK citizen if they were born in Poland to a Polish mother. Perhaps they have dual nationality?

But either way, it doesn’t do any good in terms of benefit entitlement.

If she is the primary carer of a British citizen who would otherwise need to leave the EU altogether (a Zambrano carer) then she would have a right to reside but would still be excluded from benefit entitlement. She may be able to seek support on that basis from childrens services, although given that it appears that there is no obvious impediment to the family returning to Poland, social services may push in that direction.

If she is the primary carer of a school age child who has at least one parent who is or was an EEA national who worked in the UK, then she may have a right to reside for benefits purposes on that basis (Teixeira rights). As mother has never worked in the UK, this would need to rely on the father (a) being a Polish or other EEA national and (b) having previously worked in the UK.

Thanks for the reply, it is as I expected. The father is in fact a UK national who lives in Poland and both children have dual nationality but neither are yet of school age